Keesler v. Small

• Decision Date: 22 June 2016
• Citation: 2016 N.Y. Slip Op. 04912,140 A.D.3d 1021,35 N.Y.S.3d 356
• Parties: Leonard KEESLER, et al., respondents, v. Kurt SMALL, etc., et al., defendants, Hudson Valley Hospital Center, appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1021

35 N.Y.S.3d 356

2016 N.Y. Slip Op. 04912

Leonard KEESLER, et al., respondents,

v.Kurt SMALL, etc., et al., defendants, Hudson Valley Hospital Center, appellant.

Supreme Court, Appellate Division, Second Department, New York.

June 22, 2016.

Pilkington & Leggett, P.C., White Plains, N.Y. (Michael N. Romano of counsel), for appellant.

The Flomenhaft Law Firm, PLLC, New York, N.Y. (Stephen D. Chakwin, Jr., of counsel), for respondents.

CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and HECTOR D. LaSALLE, JJ.

In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Hudson Valley Hospital Center appeals, as limited by its brief, from so much of an order of the Supreme Court, Putnam County (Lubell, J.), dated May 29, 2014, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs commenced this action, inter alia, to recover damages for medical malpractice, etc., alleging, among other things, that the defendants Kurt Small and Josephine Ratnathicam (hereinafter together the individual defendants) negligently administered epidural anesthesia to Leonard Keesler (hereinafter the injured plaintiff) during and after a surgical procedure performed at the defendant Hudson Valley Hospital Center (hereinafter HVHC), and negligently delayed in diagnosing and treating the injured plaintiff's cauda equina syndrome. The amended bill of particulars alleges that HVHC was both vicariously liable for the acts of the individual defendants, and directly negligent with respect to the injured plaintiff's postoperative care.

Generally, a hospital may not be held liable for the acts of an anesthesiologist who was not an employee of the hospital, but was one of a group of independent contractors (see Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79, 499 N.Y.S.2d 904, 490 N.E.2d 823 ). However, vicarious liability for the medical malpractice of an independent physician may be imposed under a theory of apparent or ostensible agency (see id. at 80–81, 499 N.Y.S.2d 904, 490 N.E.2d 823 ; Hannon v. Siegel–Cooper Co., 167 N.Y. 244, 60 N.E. 597 ; King v. Mitchell, 31 A.D.3d 958, 959, 819 N.Y.S.2d 169 ). “In order to create such apparent agency, there must be words or conduct of the principal, communicated to a third party, which give rise to the appearance and belief that the agent possesses the authority to act on behalf of the principal. The third party must reasonably rely on the appearance of authority, based on some misleading words or conduct by the principal, not the agent. Moreover, the third party must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal, and not in reliance on the agent's skill” (Dragotta v. Southampton Hosp., 39 A.D.3d 697, 698, 833 N.Y.S.2d 638 ; see King v. Mitchell, 31 A.D.3d at 959, 819 N.Y.S.2d 169 ; Searle v. Cayuga Med. Ctr. at Ithaca, 28 A.D.3d 834, 836, 813 N.Y.S.2d 552 ).

“There are two elements to such a claim of apparent or ostensible agency.

To establish the ‘holding out’ element, the misleading words or conduct must be attributable to the principal. To establish the ‘reliance’ element, the third party must accept the agent's services and submit to the agent's care in reliance on the belief that the agent was an employee of the principal” (Dragotta v. Southampton Hosp., 39 A.D.3d at 698–699, 833 N.Y.S.2d 638 ). In the context of a medical malpractice action against a hospital, the patient must have reasonably believed that the physicians treating him or her were provided by the hospital or acted on the hospital's behalf (see Gunther v. Staten Is. Hosp., 226 A.D.2d 427, 428, 640 N.Y.S.2d 601 ).

Here, in opposition to HVHC's prima facie showing of its entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it was vicariously liable for the alleged negligence of the individual defendants, the plaintiffs raised a triable issue of fact as to whether HVHC may be held vicariously liable...